Citation Nr: 9914472
Decision Date: 05/24/99 Archive Date: 06/07/99
DOCKET NO. 95-33 043A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to service connection for bronchial asthma.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
ATTORNEY FOR THE BOARD
J. M. Ivey, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1951 to
September 1952.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the San Juan,
Puerto Rico, Department of Veterans Affairs (VA) Regional
Office (RO).
The outside of claims file lists the veteran as RDC The 21-
8947 lists the veteran as RDC in one location and just RC in
another. The 21-22 lists the veteran as RDC-V. The RO
should take appropriate action to idnetify the veteran in
just one way.
FINDINGS OF FACT
1. The veteran had asthma in service.
2. The veteran currently has asthma.
3. The inservice and post service asthma are related.
CONCLUSION OF LAW
Bronchial asthma was incurred during wartime service. 38
U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. § 3.303
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran contends that his bronchial asthma was incurred
during active wartime service. It is the decision of the
Board that the evidence supports a grant of service
connection for bronchial asthma.
A well-grounded claim for service connection generally
requires medical evidence of a current disability; evidence
of incurrence or aggravation of a disease or injury in
service as provided by either lay or medical evidence, as the
situation dictates; and, a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. Cohen v. Brown, 10
Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498
(1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table);
see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1996);
Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus
between service and the current disability can be satisfied
by evidence of continuity of symptomatology and medical or,
in certain circumstances, lay evidence of a nexus between the
present disability and the symptomatology. See Savage v.
Gober, 10 Vet. App. 488, 495 (1997). Establishing direct
service connection for a disability that was not clearly
present in service requires the existence of a current
disability and a relationship or connection between that
disability and a disease contracted or an injury sustained
during service. Cuevas v. Principi, 3 Vet. App. 542 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Moreover, establishing a well-grounded claim for service
connection for a particular disability requires more than an
allegation that the particular disability had its onset in
service. It requires evidence relevant to the requirements
for service connection cited above and of sufficient weight
to make the claim plausible and capable of substantiation.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy,
1 Vet. App. at 81. The kind of evidence needed to make a
claim well grounded depends upon the types of issues
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993). For some factual issues, competent lay
evidence may be sufficient. However, where the claim
involves issues of medical fact, such as medical causation or
medical diagnoses, competent medical evidence is required.
Grottveit, 5 Vet. App. at 93.
As a preliminary matter, the Board finds that the veteran's
claim is plausible and thus well grounded within the meaning
of 38 U.S.C.A. § 5107(a) (West 1991). Although the RO
rejected evidence for reasons unknown to this Board Member,
there is inservice evidence of asthma. The fact that the
record is not a detailed report is irrelevant. That fact
that the document is not a treatment record is irrelevant.
The law, regulations and decisions of the Court do not
require detailed treatment records.
When a veteran submits a well-grounded claim, VA must assist
him in developing facts pertinent to the claim. 38 U.S.C.A.
§ 5107(a). The VA has obtained a VA examination, searched
for alternative sources of evidence and obtained private
medical and lay statements. There is no indication of
outstanding pertinent evidence and the duty to assist has
been met.
The veteran maintains that he was diagnosed with asthma
during military service. The veteran's service medical
records support his contentions. Information from the
hospital admission cards created by the Office of the Surgeon
General Department of the Army for the period 1942 to 1945
and 1950 to 1954 show admission in July 1952. The Surgeon
General's Office (SGO) records consist of information
extracted from military hospital records. The SGO records
show a diagnosis of perennial asthma in July 1952. This
record constitutes competent evidence of inservice asthma.
The DD 214 shows that the veteran was medically disqualified
from the Army in September 1952.
In November 1958, the appellant was admitted to a medical
facility for treatment of food poisoning. At that time he
reported that he had been discharged from service because of
asthma.
In July 1994, Dr. Pichardo wrote that the veteran had been
under his care from June 1977 to February 1989. During that
time the veteran was diagnosed with chronic recurrent asthma,
bronchitis. The doctor indicated that pertinent lab tests,
physical examinations and X-rays corroborated the diagnosis.
In August 1994 the veteran was seen for complaints of chest
pain. The veteran was not found to be in acute distress.
The diagnoses included bronchial asthma.
At the VA examination dated August 1994, the veteran reported
that he had been asthmatic since 1952 while at Fort Buchanan,
Puerto Rico. He stated that the asthma persisted on and off
since service and that it usually occurred on a monthly
basis. The veteran indicated that asthma attacks consisted
of a hacking cough followed by chest tightness, wheezing,
rhonchi and dyspnea that may last from a few hours to a few
days. Upon physical examination there was no evidence of cor
pulmonale, cyanosis or clubbing, or recent infection. A
chronic cough, mostly dry and mild dyspnea on moderately to
strong efforts was noted. The chest examinations showed an
increased AP diameter, increased resonance, prolonged
expiratory phase and late expiratory wheezes. The chest X-
ray showed well-expanded lungs and no acute infiltrates. The
final diagnosis was bronchial asthma.
The veteran submitted a written statement in February 1996
concerning his asthma condition. He wrote that his asthma
condition was incurred while he was on active duty in the
United States Army. The veteran reported that after basic
training he worked in the commissary at Fort Buchanan in the
cold storage area. He indicated that he was continually
going in and out of the refrigerators and because of this he
started feeling strong pains in his chest. The veteran
related that in the dispensary at Fort Buchanan he was
diagnosed with bronchitis and was admitted to Rodriguez
Hospital in Fort Brooke where he was hospitalized for almost
three months. He asserted that there he was diagnosed with
bronchial asthma at went before the medical board. The
veteran attested that he was then discharged for medical
reasons. He wrote that after discharge he was consistently
seen for asthma and that his condition has worsened.
In February 1996 the veteran submitted written statements
from his wife and friends concerning his asthma. His wife
wrote that the veteran was in good health when they married
and that he did not suffer from asthma until after he entered
the army. She also indicated that after being hospitalized
at Rodriguez Hospital for more than three months he was
discharge for his asthma condition. Statements from five of
his acquaintances refer to knowing the veteran since 1948 and
1949. All of them certify that the veteran never suffered
from asthma prior to entering the army. They wrote that he
was discharged from the army in 1952 suffering from asthma.
Statements from three former members of the Puerto Rico
National Guard refer to knowing the veteran in 1947 and 1951
when they were members of the Puerto Rico Army National
Guard. They wrote that during this period the veteran
suffered from asthma, that after discharge from the National
Guard he joined the Army and that later he was discharged
because of asthma.
A certificate from Corporation Central de Salud, Utuado,
Puerto Rico dated February 1996 indicated that there was no
medical evidence concerning the veteran at the institution.
The RO indicated that asthma was not noted in the SGO
reports. Our review of the SGO reports show that perennial
asthma was noted in the SGO reports. This constitutes
evidence of inservice asthma. Since the service records are
not available and there is no entrance examination for
review, the veteran is entitled to the presumption of
soundness. The presumption may be rebutted by clear and
unmistakable evidence. The statement in the SGO notes that
asthma existed prior to service, without more, does not
constitute clear and unmistakable evidence. Miller v. West,
11 Vet. App. 345 (1998). The presumption of sound condition
has not been rebutted.
The nexus between service and the current disability can be
satisfied by evidence of continuity of symptomatology.
Medical or, in certain circumstances, lay evidence may
provide the nexus. See Savage v. Gober, 10 Vet. App. 488,
495 (1997). There is inservice evidence of asthma. When
treated in 1958, he reported his inservice history of asthma.
The record tends to establish that he was discharged from
service because asthma. If correct, the fact tends to
establish that the asthma was not an acute condition that
resolved during service. The veteran has provided written
statements regarding post service asthma, he has submitted
progress notes and a private physician's statement showing
that he was seen for asthma after service. He has a current
diagnosis of asthma. He has satisfied the continuity of
symptomatology evidence requirement in Savage.
Based on the cumulative record, including competent lay
statements, the Board finds that it is highly unlikely that
the inservice evidence of asthma is unrelated to the current
diagnosis of bronchial asthma. The Board finds that the
evidence supports the veteran's claim. Service connection is
warranted.
ORDER
Service connection for bronchial asthma is granted.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals